End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

8.1:210 Bar
Admission Agency

Two agencies of the Supreme Court, the Board of Law Examiners
and the Committee on Character and Fitness, determine admission to practice
in South Carolina. See S.C. App. Ct. R. 402.

8.1:220 Bar
Admission Requirements

A candidate for admission to the Bar must be 21-years-old,
of good moral character as certified by the Committee on Character and Fitness,
academically qualified including passage of the bar examination and the Bridge
the Gap program, and must not be disbarred, suspended, or subject to pending
disciplinary proceedings in another jurisdiction. S.C. App. Ct. R. 402(c). To
retain a license to practice law, a member of the Bar must satisfy annual continuing
legal education requirements or obtain an exemption under S.C. App. Ct. R. 408.

Lawyers admitted to practice in a jurisdiction other than
South Carolina, who are employed or supervised by the legal department of a
business, may obtain a Limited Certificate of Admission, which authorizes the
individual to represent the employer before state agencies in compliance with
agency regulations or in Magistrate's Court in civil proceedings. S.C. App.
Ct. R. 405. The holder of a limited certificate may appear in other courts only
if admitted pro hac vice and accompanied by associated counsel who is licensed
in South Carolina. Special rules govern the admission to practice of law school
professors, S.C. App. Ct. R. 402(h), and of clinical law program teachers, S.C.
App. Ct. R. 414. Special rules also permit qualified retired lawyers to obtain
a limited certificate to represent pro bono and legal services clients with
supervision. S.C. App. Ct. R. 415

8.1:300 False
Statements of Material Fact in Connection with Admission or Discipline

Rule 8.1 of
the Rules of Professional Conduct prohibits any statement by an applicant to
the Bar or by a lawyer in connection with an application that is known to be
false. Rule 8.1(a). See In
re Edwards, 327 S.C. 161, 488 S.E.2d 871 (1997) (failure to disclose
on bar application all lawsuits or judicial actions of any kind to which applicant
has been party constitutes material misrepresentation); In
re Elliott, 268 S.C. 522, 235 S.E.2d 111 (1977) (lawyer disbarred for
false statements on bar application).

The applicant and any lawyer in connection with the application
shall not fail to disclose information "necessary to correct a misapprehension
known by the person to have arisen in the matter." Rule
8.1(b).

Rule 8.2 imposes
additional limits on a lawyer's speech regarding judicial officers so as to
preserve public confidence in the administration of justice. Adopting language
similar to that found in constitutional libel cases, Rule 8.2 prohibits any
statement by a lawyer about the qualifications or integrity of a judge or legal
officer or a candidate for judicial office if the lawyer knows the statement
is false or if the lawyer speaks with reckless disregard for the truth or falsity
of the statement.

8.3:101 Model
Rule Comparison

South Carolina Rule
8.3 and its comments are identical to Model
Rule 8.3 with the following modifications and additions:

South Carolina has slightly modified Rule
8.3(b) by including "honesty"trustworthiness" to make the rule parallel
with 8.3(a).

South Carolina has deleted the language in Rule
8.3(c) dealing with confidential information gained in lawyer assistance
programs and has substituted Rule
8.4(d), which reads as follows:

(d) Inquiries or information received by the South Carolina
Bar Lawyers Caring about Lawyers Committee or an equivalent county bar association
committee regarding the need for treatment for alcohol, drug abuse or depression,
or by the South Carolina Bar Law Office Management Assistance Program or an
equivalent county bar association program regarding a lawyer seeking the program's
assistance, shall not be disclosed to the disciplinary authority without the
written permission of the lawyer receiving assistance. Any such inquiry or information
shall enjoy the same confidence as information protected by the attorney-client
privilege under applicable law.

As a self-regulating profession, lawyers are expected to
report misconduct by other lawyers to appropriate disciplinary authorities.
See Rule 8.3. The duty to report
the misconduct of others extends even to misconduct by another lawyer in the
same firm. See In re Rivers, 285 S.C. 492, 331 S.E.2d 332
(1984). The duty of a lawyer to report another lawyer also may not be
relieved even if a client already has separately reported the misconduct. See
S.C. Bar Ethics Adv. Op. # 89-04. However, a lawyer
is not required by Rule 8.3 to report all violations that are discovered. A
lawyer must report misconduct if the lawyer has knowledge of a violation and
if the violation "raises a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer." Rule
8.3(a). See John Freeman, Reporting
Lawyer Misconduct, S.C. LAW., May-June 1994, at 7.

The comment to Rule 8.3
suggests that, in deciding whether to report a violation, the lawyer should
consider whether the victim is likely to discover the offense. A report is more
important if the victim is not likely to discover the violation independently.
The comment notes also that the substantiality of a question raised depends
upon the seriousness of the apparent violation and not the amount of evidence
available.

The South Carolina Bar Ethics Advisory Committee has considered
whether an offense raises a substantial question as to a lawyer's fitness so
as to require reporting under Rule 8.3.
S.C. Bar Ethics Adv. Op. # 92-01. Specifically considering
whether a lawyer must report another's breach of Rule
4.5 (threatening criminal prosecution), the committee concluded that Rule
8.3 makes sense only if it is assumed that not all violations raise substantial
questions as to a lawyer's fitness and if it is assumed that some violations
other than those relating to honesty and trustworthiness must be reported. The
committee found, however, that there was no conclusive guidance available as
to whether conduct of the type proscribed by Rule 4.5 must be reported.

An important further limitation on the duty to report under
Rule 8.3 is that a lawyer is not
required to report information of misconduct that is protected under Rule
1.6 as information relating to the representation of a client. The comment
to Rule 8.3 suggests, however, that the lawyer should encourage the client
to permit disclosure to disciplinary authorities if the disclosure would not
substantially prejudice the client.

8.4:101 Model
Rule Comparison

South Carolina Rule
8.4 and its comments are identical to Model
Rule 8.4 with the following additions and modifications:

South Carolina has added section 8.4(c), which provides
as follows: "(c) engage in conduct involving moral turpitude." The remaining
sections have been renumbered.

South Carolina has rewritten the first paragraph of the
comments and added a new second paragraph, which read as follows:

A lawyer should maintain high standards of professional
conduct and should refrain from all illegal and morally reprehensible conduct.
Many kinds of illegal conduct reflect adversely on fitness to practice law,
such as offenses involving fraud, violence, dishonesty, breach of trust, or
serious interference with the administration of justice, and the offense of
willful failure to file an income tax return. Because of the lawyer's position
in society, even minor violations of law by the lawyer may tend to lessen public
confidence in the legal profession. A pattern of repeated offenses, even ones
of minor significance when considered separately, can indicate indifference
to legal obligation.The South Carolina version of this Rule differs from the
Model Rules in that it includes conduct involving moral turpitude as professional
misconduct. This is carried over from DR1-102(A)(3).

South Carolina has not incorporated the comment adopted
by the ABA in 1998 dealing with discriminatory activity as conduct prejudicial
to the administration of justice. South Carolina has adopted the last two paragraphs
of the ABA comments to Model Rule 8.4.

The actions or omissions of a lawyer that constitute misconduct
subjecting a lawyer to discipline are set forth generally both in Rule
8.4 of the Rules of Professional Conduct and in Rule 7 of the Rules of Disciplinary
Procedure. See S.C. App. Ct. R. 413. Each rule is subject to broad interpretation,
providing the court with sufficient latitude to impose discipline whenever it
deems necessary and appropriate. See, e.g., S.C. App. Ct. R. 413, Rule (7)(a)(5)
(misconduct includes any "conduct demonstrating an unfitness to practice law").Any
act or omission by a lawyer violating the Rules of Professional Conduct or any
assistance or inducement to another to violate a Rule of Professional Conduct
or the Code of Judicial Conduct clearly subjects the lawyer to discipline. Rule
8.4(a); S.C. App. Ct. R. 413, Rule 7(a).

Discipline may be imposed for lack of professional competence
under either Rule 8.4 (for breach
of Rule 1.1 requiring competence) or Rule 7(a)(5) of the Rules of Disciplinary
Procedure. See In re Ballard, 312 S.C. 227, 458 S.E.2d 545
(1995). The Rules of Disciplinary Procedure also permit discipline to
be based upon a violation of the oath taken when a lawyer is sworn into the
Bar. See S.C. App. Ct. R. 413, Rule 7(a)(6) [the oath appears in S.C. App. Ct.
R. 402(g)].

It is well-established that any act constituting misconduct
may be punished regardless of whether the act involved the practice of law.
See Rule 8.4, cmt. ("A lawyer's abuse of
public office can suggest an inability to fulfill the professional role of attorney.").
See In re Rogers, 313 S.C. 95, 437 S.E.2d 62 (1993)
(RICO violation while in public office); In re Limehouse,
307 S.C. 278, 414 S.E.2d 783 (1992) (extortion and witness tampering
while in public office). The same is true of abuse of positions of private trust.
See In re Sipes, 297 S.C. 531, 377 S.E.2d 574 (1989)
(misuse of Girl Scout cookie proceeds; forgery).

Conviction of a crime of moral turpitude or of a "serious
crime" as defined in S.C. App. Ct. R. 413 subjects the lawyer to discipline.
S.C. App. Ct. R. 413, Rule 7(a)(4). The broad language of Rule 8.4 also subjects
a lawyer to discipline if the lawyer commits any criminal act that reflects
on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.
Rule 8.4(b).

Lawyers have been subject to discipline for various criminal
violations, such as:

• misconduct in public office, e.g. In
re Mendenhall, 316 S.C. 196, 447 S.E.2d 858 (1994) (guilty plea to two
counts of official misconduct while serving as a judge involving sexual favors
received for favorable rulings)

Misdemeanor driving under the influence is not a crime
of moral turpitude. See In re Bradley, 278 S.C. 426, 297
S.E.2d 797 (1982). Simple possession and illegal use of marijuana is
not a crime of moral turpitude, but does subject a lawyer to discipline as being
unfit to practice. See In re an Anonymous Member of the South
Carolina Bar, 293 S.C. 329, 360 S.E.2d 322 (1987).

Under South Carolina Rule
8.4(c) a lawyer is subject to discipline if the lawyer engages in conduct
involving moral turpitude, even if the conduct is not criminal. In most cases,
such conduct is covered by one of the other provisions of Rule
8.4, particularly the provisions prohibiting deceit or conduct prejudicial
to the administration of justice. Rule 8.4(c), however, provides an additional
basis for discipline for serious wrongdoing not covered by one of the other
rules.

Although the ethics rules do not specifically mention tape
recordings, the South Carolina Supreme Court has made clear its disapproval
of surreptitious recordings by a lawyer as being a deceptive activity. See In
re Anonymous Member of the South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513
(1991) (lawyer may not record any conversation by any electronic device
without prior knowledge and consent of all parties to conversation, regardless
of lawyer's purpose or content of conversation). Earlier rulings had prohibited
secret tape recording in specific situations. See In re Anonymous
Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984) (improper
for lawyer to record without prior consent any conversation with adversary or
potential adversary); In re Warner, 286 S.C. 459, 335 S.E.2d
90 (1985) (lawyer reprimanded for providing client with the means to
record secretly Family Court judge in chambers).

The court subsequently recognized certain exceptions to
the blanket prohibition for recordings made in connection with a legitimate
criminal investigation by an appropriate law enforcement agency. See In
re Attorney General's Petition, 308 S.C. 114, 417 S.E.2d 526 (1992).

Following In re Anonymous in
1991, the South Carolina Ethics Advisory Committee issued a controversial advisory
opinion interpreting this series of decisions as prohibiting a lawyer from recording,
causing to be recorded, counseling a client to record, or assisting a client
in recording any conversation surreptitiously. S.C. Bar Ethics
Adv. Op. # 91-14. A year later, the committee considered the matter again
and concluded (1) that it is clear that it is improper for a lawyer to record
surreptitiously, (2) that it should be proper for the lawyer to advise the client
whether recording is legal, and (3) that it is unclear from the court's rulings
whether a lawyer may advise a client actually to engage in secret recording.
S.C. Bar Ethics Adv. Op. # 92-17.

Rule 8.4(c)
defines misconduct to include conduct prejudicial to the administration of justice.
See In re Brooks, 274 S.C. 601, 267 S.E.2d 74 (1980) (failure
to stop for a police officer; participation in a drug transaction although not
criminally charged).

A lawyer's wilful failure to comply with a valid court
order issued either by a court of this state or of another jurisdiction is a
ground for professional discipline. S.C. App. Ct. R. 413, Rule 7(a)(7). See
In re Altman, 287 S.C. 321, 338 S.E.2d 334 (1985) (lawyer
held in contempt for failing to return certificate promptly upon suspension);
In re King, 279 S.C. 48, 301 S.E.2d 752 (1983) (lawyer
failed to disburse escrow after being directed to do so by Master's decree,
appeal from which had been dismissed); In re Norwood, 273
S.C. 780, 260 S.E.2d 177 (1979) (lawyer willfully defied order in domestic
case not to remove property from the marital residence and fled state after
being held in contempt of court).

8.5:101 Model
Rule Comparison

South Carolina Rule
8.5 and its comments differ from Model
Rule 8.5. In particular, South Carolina has not adopted Model
Rule 8.5(b) dealing which choice of law, although the comments refer to
choice of law principles.

8.5:102 Model
Code Comparison

There was no counterpart to Rule
8.5 in the Code of Professional Responsibility.

The South Carolina Supreme Court has jurisdiction over
any lawyer admitted to practice in South Carolina, regardless of where the lawyer
practices and regardless of where the misconduct occurs. Rule
8.5.